Monday, January 19, 2009

Evaluator appointments violate the rules

I believe that some California counties are violating the law on appointing child custody evaluators, and you can see it on their web site forms.

Elkins v Superior Court (2007) said that family courts had to follow the same rules of evidence as any regular civil case. In re Seagondollar (2006) said that a child custody evaluator appointment must state purpose and scope, as in Rule 5.220. In re Marriage of Matthews (1980) said that a family court judge cannot delegate a custody or visitation decision to an evaluator.

See Forms FM-1056 and FM-1057 on the Santa Clara forms, or Form SUPCV-1054 on the Santa Cruz forms. These forms pretend to comply with the law by using some generic language and a few checkboxes. The rule says that a child custody evaluation must have a written order from the court specifying its purpose and scope, but these forms attempt to satisfy that by just having a checkbox for "a full custody or visitation evaluation".

More outrageously, the forms have these checkboxes:

A. ASSESSMENT/EVALUATION RECOMMENDATIONS:
The recommendations resulting from the assessment/evaluation shall address the issues checked below:
[ ] Legal Custody, may include division of authority for decision making
[ ] Physical Custody
[ ] Visitation
[ ] Whether visitation shall be supervised, and if so, by what type of program and for how long
[ ] Exchange provisions designed to protect the child from exposure to extreme conflict or domestic violence, and to
protect the safety of all the parties
[ ] Move-away issues
[ ] Whether either party shall be required to attend counseling, rehabilitation, parenting, or co-parenting programs,
substance abuse counseling domestic violence programs, and, if so, which programs and for how long.
[ ] Whether the child shall participate in counseling programs and, If so, the method for selecting the counselor
[ ] Other:
[ ] Other recommendations related to any of the above issues necessary for clarification or implementation of the recommended order, or otherwise required to address the health, safety, welfare, and best interests of the child.

There is no legitimate reason for a psychologist to ever give a recommendation on legal custody. He might have an opinion on the personality characteristics or mental disorders of the parties, but none of these things would ever be decisive on legal custody. Legal custody is only for the court to decide, and is based on facts that cannot possibly be available to the psychologist.

The psychologist should also never be giving a recommendation on whether anyone "shall be required to attend counseling". He might have an opinion about whether some particular type of counseling might be beneficial to someone, but he does not have the training or the authority to require anyone to do anything. I believe that it should be unethical for any psychologist to accept any such assignment.

7 comments:

Below excerpts were sent as part of a letter to the Elkins Task Force.

"Having read the 2001, "Access to Justice" report by the Judicial Council, I was disappointed when the status quo remained.

However, respecting some of the people on the Elkins Commission, my hope is change will be forthcoming. If so I can assure you just as lives have been lost, lives will be saved.

Although the 2001, "Access to Justice" tome admitted to a lack of Equal Justice, it was informative. It was reading that long ago report draft that I first learned *Both* custodial and non-custodial parents in San Diego agreed that mediators, supervised visitation monitors and attorneys all *Prohibited* resolution of a case.

Post Elkins, one can now look forward to real change, much needed as a recent State Bar president told me, eighty-five percent of Complaints to the State Bar are in regard to the conduct of Family Law attorneys.

That said, the problems in Family Court cannot and will not be remedied until both the Council and the CJP act to end entrenched, misogyny and cronyism. The below is from the behemoth site, www.FamilyLawCourts.com; founded in 2001, to educate reporters and the public that the business of government is business - and family court judges make sure business is always good, expanding in new areas, and ongoing.

The good news - and yes there is some; fast forward to the solution. Not all are Elkins related, but each addresses persistent, related issues.

1. Please ignore the, "I don't carry malpractice in that area" refrain from larger firms and suggest nicely effective, or strong-arm tactics until larger firms actively commit to a set number of pro-bono work in family court. Not only will litigants benefit, but new players in the field armed with firm resources will effectively render a much needed crimp in systemic cronyism.

2. Establish a fund so pro per litigants can purchase court transcripts on a sliding scale. That single act would constitute the fastest route to "Equal" access. (Having said that, in 2000, the Fourth District Court of Appeal ruled San Diego judges needn't read pleadings before rendering a decision). Obviously this is not "access" to justice. However, an appellate court rubber-stamping the decision of a lower court involving a judge who did not read the pleadings, remains problematic.

3. By far the largest, continuing problem in family court remains judges who refuse to let children testify, opting instead to continue promoting business by appointing minor's counsel. Muzzling children sometimes gets them killed. This should specifically be addressed by Elkins. More importantly, what finally has to be established is the attorneys must represent the Child's wishes; not what the attorney believes to be in their best interests.

Also, any therapist worth their salt knows the best way to build a child's confidence is to listen to them. Judges however have been needlessly depleting the family resources with minor's counsel and custody evaluators. It's gotten so bad, schools are getting into the litigation business for move-always. (See http://www.schoolmatch.com which implies a better schools trump better parenting.)

4. Supervise "Judge Pro Tems." I was surprised to learn the CJP does not address issues regarding their actions. I was told by the CJP it's a State Bar issue. Unfortunately, this was news to the State Bar which is problematic on several levels.

Few know there is no oversight for Judge Pro Tems. None. By way of example, please check the state bar record of Paul Gavin. At the time Gavin was becoming a Judge Pro Tem, the State Bar was disciplining him for a variety of reasons on behalf of six, prior clients. Also, the State Bar is supposedly investigating Judge Pro Tem, James Allen of San Diego, (year three) for accepting valuable Warner Springs property for no consideration from an attorney representing a family law litigant, in a case he was overseeing as pro tem. The case numbers are D047858 and GIC843843.

5. Encourage judges to step aside when asked to recuse themselves. Far too many judges are remaining on cases for all the wrong, self-deluded reasons. Stepping aside also eliminates a perceived need for cronyism, and frankly, more blatant sucking up.

By way of example, after Sacramento Judge Peter "Chainsaw" O'Brien (now facing his second discipline charge) cost one man his livelihood in a divorce matter, there was publicity. http://www.newsreview.com/sacramento/Content?oid=865070In response, the Family Law Section of the Sacramento County Bar Association thought it was a good idea to lobby to honor O'Brien as Judge of the Year. Separate from not being able to make up this kind of thing, the cronyism accurately proves family court is only political.

6. Either dismantle bundling which clearly only protect attorneys, or prohibit attorneys from requiring clients to lien their only resource. The public is aware of the State Bar's public relations campaign to promote "Bundling" as cost-effective. But it was another black-eye for the Bar.

Too many examples exist of attorneys not doing their job, then going after their client's homes. See state bar complaints against Frank O. Fox. What would it take for the State Bar to act to protect the public; but given the State Bar's miserable history in this area, no one spends much time wondering.

7. Make sure potential clients learn that if "collaborative law" fails, the client who then must find a litigator, is still on the hook for attorney fees for his or her "collaborative" attorney.

7.A. Make sure litigants are aware the rules of private judging differ. More than a few litigants have written that while in the throes of making decisions that puzzled them, they did not realize the lasting impact and different rules employed by private judges, who likewise no longer are bound to provide financial disclosures.

8. Encourage judges to reschedule trials when attorneys quit on short notice. Two, recent examples include Orange County Judge Nancy Pollard who twice refused to reschedule a trial when the attorney of record quit one week prior to trial. Unfortunately the litigants are too afraid to file complaints to the CJP about her.

9. Greatly curtail the frightening cottage industry of Supervised Visitation....currently running amok. Please note in listing Eight reasons to demonstrate a need for supervised visitation; the first Four involve actual *Crimes* committed against children. Unfortunately, family court judges have made crimes, crime-lite by referring to it as “abuse” when the matters should be referred to the police and DA. Not doing so, and not allowing testimony from children, renders the judges a key part of the problem, not the solution. http://www.courtinfo.ca.gov/forms/documents/fl341a.pdf

Also, the California Judicial Council form for Supervised Visitation states "evidence" has been entered. "Evidence" is loosely described. It could be a statement or declaration by one party. Most know perjury isn't prosecuted. So while there is zero motivation to tell the truth; there plenty of motivation not to.

Judges should not be allowed to serve on any board of non-profit, visitation centers. “Serving” on a board, and then sentencing litigants to use the facility one serves as a board member, is clearly a conflict-of-interest. Places such as Kids Turn, who lobby for the robes, comes to mind.

Kid's Turn, which used to have former Commissioner Josanna Berkow; on it's board.

"Her expertise with the clientele the organization serves makes her role on the board invaluable." Yes, this was true. Berkow didn't merely bring home their bacon; she ordered it brought to them. She is no longer a commissioner nor on their board. But how many other judges are sitting on boards of these so-called "non-profits?"

There is absolutely no oversight to these organizations. The County Board of Supervisors in San Diego granted roughly 300k to one Susan Griffin, who passed herself off as a therapist running a visitation center for over a decade; with no credentials. Turns out Griffin graduated from Email University. She was not working on her Ph.D from an accredited institution. Eventually the County made Griffin pay 60k in restitution. However, this being San Diego, instead of being prosecuted for fraud; Griffin next "community partnered" with the police partnered, private Non-profit, "Family Justice Center" - heading up their supervised visitation program.

Later, although San Diego judges all knew Griffin was not credible, (she made the cover of San Diego Magazine,) they continued ordering litigants to her facility, “Hannah’s House.” Including *after* Griffin was fined by the State for practicing therapy without a license. Thus, the end result is judges are ordering litigants to pay her fines, and continue to base their custody decisions on Griffin’s reports. Judge Randa Trapp being key among them. Trapp is married to a San Diego Sheriff's deputy. It’s all very cozy.

Supervised Visitation has gotten so far out-of-hand, "professionals" Monika Konia and her partner Allan Glick of ABC Visitation Services took their dispute with a client to; Judge Judy! On February 21, 2008, Supervised Visitation has its 15 minutes of fame with each party slinging mud. There was nothing professional about their display. It seem time to eliminate these so-called "services." If necessary, use volunteers from the neighborhood, church or school. So called "professionals" remain in extremely short supply.

(Amazingly, Judge Judy said in her 30 years on the bench she never heard of a case where the mother who had 97% custody had it reduced to 3 hours a week. Anyone with recent experience knows this is simply untrue. One case involved a mother who had sole legal and physical custody after a long trial. She is now on the run, because, father's father, Rep. Gary Miller (So. Cal) got involved and presto-changeo; custody was almost immediately switched four months after a trial in which the mother was granted sole physical and legal custody. Father, by the way, and son of Rep. Miller, has a long history of arrests and bad psychological evaluations. Clearly, Judge Judy remains completely and wholly ignorant to how the courts currently operate.)

10. Greatly curtail child custody evaluations. Not only are they costly, evaluations having been ordered for decades, rarely publicized is follow up studies to determine their merit have shown significant damage to parental relations from isolated contact between parent and child.

However, judges continue not listening to children and denying the Constitutional right to parent which fosters parental-child alienation. It's helpful to be educated. While it seems prudent that no judge or minor's counsel should address this issue, or accept an appointment as minor's counsel unless they have been educated in the area, (I suggest the book, "Children Held Hostage" which few judges and attorneys have read, probably because it's distributed by the ABA rather than say, Barnes & Noble)

What's clear is any parent who deliberately isolates a child from the other parent is damaging that child and the child's relationship with the other parent. The offending parent should be warned that action could result in a loss of custodial status. However as it now stands, many judges, attorneys, and litigants are still defining parental alienation to the standard prior to the suicide of Dr. Gardner. Unfortunately, parental alienation, or the destruction of the parent-child relationship has greatly increased due to judicial and attorney ignorance.

Additionally, I wish to mention I recently attended the National College of District Attorneys 18th annual conference. Although many criminal cases begin in family court, see www.FamilyLawCourts.com/domestic.htmlthis conference had exactly two family court judges in attendance. Out of the eight hundred participants. This is nothing short of shameful; but it does address a judicial, "I've seen it all" attitude. Perhaps more judges could attend in the future at the risk acquiring additional information.

It is my sincere hope the Elkins Survey fosters real change. If it doesn't, expect the list of kids killed, to continue to grow. California by the way, leads the nation. San Diego leads California (four) in deaths per family.

www.FamilyLawCourts.com/kids.htmlScroll for a partial list of murdered, California kids.

Erik Eubanks warned a Vista judge his estranged wife and mother of their four children was threatening to harm the kids. The woman’s boyfriend told him so. Instead of asking the children about it, the judge shot the messenger, so to speak, and ordered Erik to supervised visitation.

Mom, Susan Eubanks, then shot all four of her children, for real. Killed them all. Susan is now on death row.

Clearly, children need to have equal rights, and need to be heard. Judges must listen to them to gain information as to what is going on, rather than relying on minor’s counsel. Ask Judge Aviva Bobb, who refused to allow Jeanene Bonner in her court room. Jeanene wanted to tell her how and why she was afraid of her father, but Judge Bobb refused. So Jeanene wrote Judge Bobb a letter. After the police found Jeanene’s body, http://www.newsreview.com/chico/Content?oid=9605(her father killed her and then committed suicide) the Court Spokesperson said, the letter had "seemed contrived." That’s right. The public relation’s flack blamed the now-dead eleven year old for not writing a better letter.

What happened to Judge Bobb? She was later honored as the 2005 recipient of the Benjamin Aranda "Access to Justice Award" for her work promoting Access to the Courts for the poor.http://www.courtinfo.ca.gov/presscenter/newsreleases/NR52-05.PDF

Please know when Judy Johnson the Executive Director of the State Bar was advised of this murder immediately after Judge Bobb accepted the “honor."

Johnson was asked if the blue-ribbon panel was aware of the case. Ms. Johnson admitted they were not. However, when asked if Ms. Johnson was going to inform them, Ms. Johnson refused to respond. Twice. Eventually Ms. Johnson snarled,

“NO; and I shot the Pope too!” Then she hung up.

One questions why anyone is forced to continually deal with individuals who have no regard for the lives of children and why these individuals are allowed to remain in positions of authority. This doesn’t speak well for State Bar, or State of California, personnel.

Perhaps the Elkins Commission will address this. One can only hope. As good people involved, one can only hope those who oppose equality and access, don’t thwart their efforts.

It is difficult to receive justice, and why doesn't it come about is anyones guess... But I am happy to report after two years of Frank O. Fox, and Judge Mary Thornton House who was assisting him in his injustice, was caught, spindled, mutilated, folded, and soon to be torn apart. The judge for all intents and purposes has been shipped back to the minors, from L.A. Superior Down Town to Pasadena. She was caught in the act by someone her senior and was immediately sent packing... Now, its Foxs turn and so far, the default judgment has been rejected. And the table has now been sort of leveled. i don't wish to gloat, because this isn't anything to gloat about. I know Fox has taken peoples homes and lives for his own sociopathic reasons. I have personally witnessed in his garage the piles of books,chairs, and babies clothing, magazines, even a harley davidson. he has a illegaly dug basement in his hancock park property that he had sealed prior to his filing a suit against me because I threatened to expose it. and i did, but there isn't any satisfaction for me, not yet. If I have my way, there will be, if there is anyway, that i can have all of his bullshit reviewed and property returned to others, then I will then gloat, but if i just walk away unmolested, it was all for nothing. I want more than just to win, this is larger than I am, and I know WE will win, but it's a matter of how far do I have to go to get him to bend before I break him. Anyone want a bar card?

Hi I am another victom of Frank Fox. He distroyed my case lied to the court and now he is after me for his outraigous fees and has a lein against my house. I am intrested in starting a class action law suite against this firm. if you are intrested please respond to this comment.

I'm involved with the Probate courts where my sister perjured her petition to force our mother into a conservatorship. The current judge is Mary Thornton House, the previous judge Candace Beason was a nightmare. Beason ignored perjury, abuse, theft and anything brought to her attention. Its insane how corrupt and bad our court system in CA has gotten. If anyone in the Family courts is interested many victims have formed support groups on Facebook, I'm at http://www.facebook.com/robertagettinger where you can read my full nightmare on my info section. If you're a victim of corruption in California please contact me as we're having some success on the federal level and this may help you.

See www.randatrapp.blogspot.com concerning the incompetent Judge Trapp of San Diego who was kicked within a few years from hearing family court, to criminal, and now hears civil cases. The highest reversal rate in downtown San Diego.